Citation Nr: 0636557
Decision Date: 11/27/06 Archive Date: 12/06/06
DOCKET NO. 04-22 097 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a disability rating greater than 50 percent
for a generalized anxiety disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Paul S. Rubin, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1973 to
August 1977 and from August 1983 to January 1985.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.
In June 2004, the veteran's appeal was certified to the Board
and she was notified she had 90 days to submit additional
evidence. The Board notes that the veteran submitted
additional personal statements dated September 2005 and June
2006, beyond the 90-day period without a waiver of RO
consideration and without an explanation as why the evidence
was late. In accordance with the applicable regulation, the
Board will not consider these particular statements. The
Board refers the evidence to the RO for the appropriate
action. See 38 C.F.R. §§ 20.800, 20.1304 (2006).
FINDING OF FACT
The evidence of record demonstrates no suicidal ideation; no
obsessional rituals which interfere with routine activities;
no speech intermittently illogical, obscure, or irrelevant;
no near-continuous panic; no impaired impulse control; no
spatial disorientation; no neglect of personal appearance and
hygiene; and only some difficulty in establishing and
maintain effective relationships (veteran is able to
socialize with neighbors and reports being active in the
community despite her anxiety) associated with her service
connected disorder, standing alone.
CONCLUSION OF LAW
The criteria for a disability rating greater than 50 percent
for generalized anxiety disorder have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7,
4.10, 4.21, 4.126, 4.130, Diagnostic Code 9400 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2006). The basis of disability evaluations is the ability
of the body as a whole, or of the psyche, or of a system or
organ of the body to function under the ordinary conditions
of daily life including employment. 38 C.F.R. § 4.10.
The issue on appeal arises from a claim for an increased
rating received in July 2001. As a result, only the present
level of disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). If there is a question as
to which evaluation to apply to the veteran's disability, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
Mental disorders are evaluated under the general rating
formula for mental disorders, a specific rating formula
presented under 38 C.F.R. § 4.130. In addition, the fourth
edition of the American Psychiatric Association's Diagnostic
and Statistical Manual for Mental Disorders (DSM-IV) provides
guidance for the nomenclature employed within 38 C.F.R.
§ 4.130.
When evaluating a mental disorder, the frequency, severity,
and duration of psychiatric symptoms, the length of
remissions and the veteran's capacity for adjustment during
periods of remission must be considered. 38 C.F.R. §
4.126(a). In addition, the evaluation must be based on all
the evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination. Id.
Further, when evaluating the level of disability from a
mental disorder, the extent of social impairment is
considered, but the rating cannot be assigned solely on the
basis of social impairment. 38 C.F.R. § 4.126(b).
The veteran's psychiatric disorder is rated at 50 percent
under Diagnostic Code 9400, a generalized anxiety disorder.
38 C.F.R. § 4.130. The 50 percent evaluation is effective
from August 31, 1998. Prior to that date, the disorder was
rated as 30 percent disabling from May 28, 1997, and 0
percent disabling from January 30, 1985.
A 50 percent rating for a psychiatric disorder is appropriate
when there is occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships. Id.
An even higher 70 percent rating under the general rating
formula for mental disorders is in order when there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work like setting); and inability to establish and
maintain effective relationships. Id.
In evaluating the evidence, the Board has also noted various
Global Assessment of Functioning (GAF) scores contained in
the DSM-IV, which clinicians have assigned. A Global
Assessment of Functioning (GAF) score is a scale reflecting
the "psychological, social, and occupational functioning on
a hypothetical continuum of mental health-illness." Richard
v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).
An examiner's classification of the level of psychiatric
impairment at the moment of examination, by words or by a GAF
score, is to be considered, but it is not determinative of
the percentage VA disability rating to be assigned; the
percentage evaluation is to be based on all the evidence that
bears on occupational and social impairment. See generally
38 C.F.R. § 4.126; VAOPGCPREC 10-95.
The higher the GAF score, the higher the overall functioning
of the individual is. For example, a score of 41-50
illustrates "[s]erious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job)." Id.
A score of 51-60 represents "[m]oderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
OR moderate difficulty in social, occupational, or school
functioning, (e.g., few friends, conflicts with peers or co-
workers)." Id.
In addition to the veteran's service-connected generalized
anxiety disorder, VA examinations dated May 2002 and January
2004 and VA treatment records from 2001 through 2004 included
diagnoses of post-traumatic stress disorder (PTSD),
personality disorder, and alcohol dependence. These
conditions are not service-connected. The January 2004
examiner indicated that many of the symptoms of her service-
connected and nonservice-connected disorders overlap. When
it is not possible to separate the effects of the service-
connected condition versus a nonservice-connected condition
(such as a personality disorder), 38 C.F.R. § 3.102 requires
that reasonable doubt be resolved in the veteran's favor,
thus attributing such signs and symptoms to the service-
connected disability. Mittleider v. West, 11 Vet. App. 181,
182 (1998) (citing 61 Fed. Reg. 52,698 (1996)).
Consequently, the Board will consider all the veteran's
psychiatric symptoms without differentiating between distinct
disorders, with the exception of one difficulty which will be
cited below.
VA psychiatric examinations dated May 2002 and January 2004
and VA treatment records from 2001 to 2004, as a whole,
provide evidence against the degree of occupational and
social impairment required for a higher 70 percent rating
based on the service connected disorder, standing alone.
Although the veteran does have some problems, the
examinations of VA psychiatric examiners demonstrated no
suicidal ideation; no obsessional rituals which interfere
with routine activities; no speech intermittently illogical,
obscure, or irrelevant (speech was described as hyper verbal
and stammering at times, but not pressured); no near-
continuous panic (depression was noted but there was no
formal thought disorder); no impaired impulse control
(concentration, judgment, and insight were fair); no spatial
disorientation (veteran was oriented to person, place, and
situation); no neglect of personal appearance and hygiene (no
hygiene problems were recorded); and only some difficulty in
establishing and maintaining effective relationships (veteran
is able to socialize with neighbors and reports being active
in the community despite her anxiety). Id.
The Board acknowledges that the veteran's GAF scores ranged
from 50 to 60, indicative of moderate to serious symptoms of
impairment. The veteran also has received continuous
treatment for anxiety, depression, social discomfort,
insomnia, and alcohol abuse.
The veteran's recent statements indicate continuous treatment
for her condition. This fact is not in dispute. However,
the veteran's long history of alcohol abuse, a disorder that
has not been found to be related to service, is clear,
providing highly probative evidence against this claim. The
law and regulations provide that compensation shall not be
paid if the disability was the result of the person's own
willful misconduct, to include the abuse of alcohol or drugs.
See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§
3.1(n), 3.301 (2006); see also VAOPGPREC 2-97 (January 16,
1997). The Board finds that alcohol abuse (both the abuse of
alcohol and the residual problems associated with long term
alcohol abuse) have clearly caused many of the veteran's
problems, leading to difficulties beyond her service
connected disorder, providing evidence against this claim.
VA examinations from July 1997 to the present are found to
clearly support this finding. Clear indications of PTSD
associated with pre-service events only support a negative
finding that it is the veteran's service connected disorder
that have caused her problems at this time.
A November 2003 VA treatment record revealed that the veteran
has difficulty in adapting to stressful circumstances in a
competitive work environment. Nonetheless, the January 2004
VA examiner indicated that the veteran is able to maintain
employment as a housekeeper, volunteers with the animal
humane society on a regular basis, and remains active within
the community despite her condition, providing evidence the
Board finds to be against her claim.
Overall, notwithstanding her GAF scores, her current
manifestations of psychiatric disability more closely
approximate the criteria for a 50 percent rating. 38 C.F.R.
§ 4.7. See Mauerhan v. Principi, 16 Vet. App. 436 (2002)
(finding that the factors listed in the rating formula are
examples of conditions that warrant a particular rating and
are used to help differentiate between the different
evaluation levels). Post-service medical records, as a
whole, provide evidence against a higher rating.
It is undisputed that the veteran's service-connected
psychiatric disability has an adverse effect on her
employment. Overall, however, there is no evidence of
exceptional or unusual circumstances to warrant referring the
case for extra-schedular consideration. 38 C.F.R. §
3.321(b)(1). The veteran is still able to work as a
housekeeper and volunteer for the animal humane society.
Furthermore, there is no evidence of frequent
hospitalizations, to suggest that the veteran is not
adequately compensated for her service connected disability
by the regular rating schedule. VAOPGCPREC 6-96. See 38
C.F.R. § 4.1 (disability ratings are based on the average
impairment of earning capacity).
Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §
5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). That is, by way of VCAA letter dated in April
2002, the RO advised the veteran of the evidence needed to
substantiate her increased rating claim and explained what
evidence VA was obligated to obtain or to assist the veteran
in obtaining and what information or evidence the veteran was
responsible to provide. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Thus, the Board finds that the RO has
provided all notice required by the VCAA. 38 U.S.C.A. §
5103(a). See Quartuccio, supra.
The Board observes that the RO issued the April 2002 VCAA
notice letter prior to the December 2002 adverse
determination on appeal. Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004). However, the above letter did not ask the
veteran to provide any evidence in her possession that
pertains to the claim. Id at 120-21. Nonetheless, the Board
is satisfied that the veteran actually knew to submit such
evidence to the RO, given the evidence she has submitted in
the form of written statements and several treatment records.
The veteran was afforded a meaningful opportunity to
participate in the adjudication of her claim throughout the
appeal process. Additionally, the VCAA letter dated in April
2002 advised the veteran that the VA would obtain "any
additional information or evidence." Therefore, any failure
to make the specific request is non-prejudicial, harmless
error. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
See Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Moreover, the Board emphasizes that neither the veteran nor
her representative has made any showing or allegation of any
defect in the provision of notice that resulted in some
prejudice to the veteran. The Board finds that any
deficiency in the content or timing of notice to the veteran
is harmless error. See Overton v. Nicholson, No. 02-1814
(September 22, 2006) (Reviewing the entire record and
examining the various predecisional communications, the Court
concluded that the evidence established that the veteran was
afforded a meaningful opportunity to participate in the
adjudication of his claims.)
Since the claim for an increase was denied by the RO and the
Board, there are no potential effective date issues that
would warrant providing additional VCAA notice. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
With respect to the duty to assist, the RO has secured the
veteran's service medical records (SMRs) and VA treatment
records. The veteran was afforded several VA examinations to
determine the extent of her psychiatric disability. There is
no indication in the claims folder that the veteran
identified and authorized VA to obtain any private medical
records. While the veteran receives regular treatment twice
a month for her disorders, there is no indication that the
most recent treatment records over the last several months
would indicate a worsening of this condition.
Neither the veteran nor her representative has stated that
any additional evidence remains outstanding. Thus, the Board
is satisfied that all relevant evidence identified by the
veteran has been secured, and that the duty to assist has
been met. 38 U.S.C.A. § 5103A.
ORDER
A disability rating greater than 50 percent for generalized
anxiety disorder is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs